Since 1977, Jon Michael Probstein has assisted people and businesses in all matters. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Monday, September 30, 2013

The standard National Flood Insurance Program (“NFIP”) dwelling form requires that detailed information be provided as a proof of loss within sixty days.

After Sandy hit on October 29, 2012, the Federal Emergency Management Agency (“FEMA”) extended the amount of time within which an insured must submit a proof of loss for FEMA-backed insurance policies to one year from the date of the loss. Generally speaking, for New Jersey and New York Sandy victims looking for insurance claims, this deadline should be considered to be no later than October 29, 2013 but some may argue the one year expires October 28.

Wednesday, September 25, 2013

If an employee violates company policy or commits some act of alleged misconduct on Day 1 but is not discharged until Day 160, an issue arises. As explained in In re AB 566212 (Decided November
29, 2012):

"OPINION: The credible evidence establishes that the
employer discharged the claimant on November 4, 2011. The law is settled that
there must be a direct nexus in time between the alleged act and the discharge
to establish misconduct for unemployment insurance purposes, and if there is a
delay, there must be a reasonable explanation for such delay. We find that the
employer has failed to put forth any compelling explanation for the delay in
discharge from May to November of 2011. Although an employer is entitled to a
reasonable period of inquiry to investigate the matter and consider the proper
consequences, we note that the investigation of the incident was essentially
complete the following day. Even considering that school may have been out of
session after June 26, 2011, we are not convinced that this adequately explains
all of the inordinate delay in discharge, particularly considering that the
claimant continued working for employer well into the next school year, and for
some six weeks after the "personnel performance conference" in
September.”

Tuesday, September 24, 2013

At yesterday's mortgage foreclosure clinic at the Nassau County Bar Association, several matters involved the connection between student loans and mortgage foreclosure. There are many.

One aspect of student loans that has been in the press recently is the under utilization of the Public Service Loan Forgiveness Program, which is intended to encourage individuals to enter and continue to work full-time in public service jobs. Under this program, borrowers may qualify for forgiveness of the remaining balance of their Direct Loans after they have made 120 qualifying payments on those loans while employed full time by certain public service employers.

Wednesday, September 18, 2013

As a trial is about to begin in the Estate of Huguette Clark matter, here is a link to an article I recently found with some very good suggestions on how to avoid this type of battle, even with small estates where such disputes can lead to agonizing family issues:

Tuesday, September 17, 2013

Setting aside the argument that litigation always affects the mental health of a party, there are truly cases where a party who has not been adjudicated as incompetent is nevertheless incapable of adequately prosecuting or defending his/her rights. There is statutory guidance in Article 12 of the CPLR and of course the cases thereunder when dealing with a client in litigation (and/or a pro se party in opposition) with a mental health condition and an attorney should be aware that a need for a guardian ad litem may arise at any time. The best course, naturally, is to deal with client competency problems as soon as possible in order to avoid unnecessary delays and costs in litigation.While researching this, I came across an interesting Court of Claims case from a few months ago where the pro se claimant was making his own motion for a guardian ad litem:TRUCCHIO v. THE STATE OF NEW YORK, # 2013-048-101, Claim No. 112596, Motion No. M-82864

Thursday, September 12, 2013

I had an interesting question posed to me yesterday - was the individual a tenant or a licensee? This distinction is important so here is a recent case I found which has a thorough discussion of the issue:

Undisputed Facts

The undisputed relevant facts presented are that Robert Drost, the petitioner, is the sole deeded title holder of the real property located at 43 Louisa Court, Northport, New York. Until recently, the petitioner resided there with his ex-girlfriend, the respondent, Kim Hookey, for in excess of three years. Prior to moving in together the respondent individually owned and resided in her own separate house. Contemporaneously with the petitioner's move-in invitation, the respondent transferred a one-half interest in her house to him in consideration of $25,000 which was utilized to cure her mortgage arrears. The petitioner recently moved out of the Louisa Court premises alleging the respondent has a medically related affliction. Said condition has apparently prevented the respondent from appearing in this action other than by counsel.

Issues Presented

May a cohabiting former boyfriend dispossess his girlfriend of three years from real property, titled only in his name, via a summary proceeding pursuant to the provisions of RPAPL 713 (7)? Secondly, if such a girlfriend sold the boyfriend a one-half interest in a second residence as part of the cohabitation arrangement is she a "licensee," "tenant at will" or something else?

Discussion

Tenant at Will?

[*2]The petitioner has proceeded under section 713 (7) of the RPAPL which provides that he may dispossess a licensee after giving a 10-day notice to quit. The respondent girlfriend counters that the 10-day notice to quit is inapplicable as she is not a licensee, but rather a tenant at will, requiring a 30-day notice to quit. (See Real Property Law § 228.) Despite the frequency that the "cohabiting boyfriend/girlfriend" issue is presented in this state's landlord-tenant{**25 Misc 3d at 212} courts, "the legal status of a paramour with respect to continued occupancy . . . after love's ardor has cooled" was only first construed via written decision in 1987. (Minors v Tyler, 137 Misc 2d 505, 506 [Civ Ct, Bronx County 1987].) As of this date, no appellate court has directly addressed the paramour licensee issue, although a plethora of lower courts have written divergent opinions on the subject, premised upon First, Second and Fourth Department, Appellate Division, decisions construing the status of a "wife" as a licensee. The threshold dispositive issue requires the court to address the girlfriend's argument that her legal status is that of a "tenant at will" (not a licensee) and as such is entitled to the enhanced 30-day notice protections afforded landlord/tenant relationships ascribed under RPAPL 711. (Real Property Law § 228.) Interestingly, the terms "tenant at will" and "licensee" are not defined by statute in New York, and as such the distinction between them is left to the common law. (See Larned v Hudson, 60 NY 102 [1875].) The generic common-law definitions of these two concepts do tend to blur and involve common concepts of temporary permission to occupy premises for an undetermined time period. (See generally Fisher v Queens Park Realty Corp., 41 AD2d 547 [2d Dept 1973].) However, synthesized down to its most basic common denominator, a "tenant at will" recognizes a landlord-tenant relationship and the occupant is granted exclusive possession of a designated space while a "licensee" acknowledges an absence of a landlord-tenant relationship and the occupant receives only unexclusive "use or occupancy" of a premises. (See American Jewish Theatre v Roundabout Theatre Co., 203 AD2d 155, 156 [1st Dept 1994], citing Feder v Caliguira, 8 NY2d 400, 404 [1960]; see also Reynolds v Van Beuren, 155 NY 120 [1898] [dicta]; 49 NY Jur 2d, Easements § 216.) The factual situation at hand evidences no indication of a landlord-tenant relationship. The girlfriend was granted permission to utilize the entirety of the residence. That grant did not include "exclusive dominion and control over a specifically identified portion of [the] premises" and as such is recognized to constitute a license pursuant to the provisions of section 713 (7). (Federation of Orgs., Inc. v Bauer, 6 Misc 3d 10, 12 [App Term, 9th & 10th Jud Dists 2004]; see also City Enters. v Posemsky, 184 Misc 2d 287 [App Term, 2d & 11th Jud Dists 2000].) In such a situation, the respondent is not a "tenant at will," and is not entitled to a 30-day notice to quit.{**25 Misc 3d at 213}

Licensee?

Statutes Change the Common Law

Historically, nonmarried adults who shared the nonexclusive confines of a home and [*3]were provided with board maintained the legal status of a "lodger." (See People v Hyland, 19 Misc 3d 1114[A], 2008 NY Slip Op 50716[U] [Suffolk Dist Ct 2008].) A lodger did not maintain a landlord-tenant relationship as the owner did not surrender dominion over the premises to him. (See Ashton v Margolies, 72 Misc 70 [App Term 1911]; Schreiber v Goldsmith, 35 Misc 45 [App Term 1901]; 1 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 4:2, at 173 [4th ed 1998].) Prior to the enactment of RPAPL 711-713's predecessor statutes (Civ Prac Act §§ 1410-1426), a lodger could not be dispossessed via a summary proceeding which was limited to landlord-tenant relationships. Lodgers could only be formally removed via a common-law "action in ejectment." (See Benjamin v Benjamin, 5 NY 383 [1851]; Mathews v Mathews, 2 NYS 121 [3d Dept 1888].) In response to changing times and increased societal demands, the state legislature, in 1921, created a bifurcated statutory scheme within the Civil Practice Act which allowed for the summary dispossession of both landlord-tenant relationship and nonlandlord-tenant relationship (Civ Prac Act, art 83, § 1411) real property occupiers. The legislature expanded the nonlandlord relationships in 1951 to expressly include licensees. (Rosenstiel v Rosenstiel, 20 AD2d 71, 74 [1st Dept 1963], citing L 1951 ch 273.) It is this court's opinion that the legislature intended the expansion of the summary remedy to be all encompassing and that section 713 (7), and its predecessor statute Civil Practice Act § 1411 (8), was the catchall provision designed to include all non-landlord-tenant occupiers of real property who were not otherwise expressly designated. Such a construction would explain why the statute itself is silent as to any limitations envisioned by the legislature which would change the common-law definition of "licensee." It is noted that statutes arising after creation of the common law are held to abrogate it only to the extent of the "clear import of the language used" and only to the extent the "statute absolutely requires" (McKinney's Cons Laws of NY, Book 1, Statutes § 301 [b]; see also Bertles v Nunan, 92 NY 152 [1883]). The statute's derogation of the common law must be strictly construed. (Dollar Dry Dock Bank v Piping Rock Bldrs., 181 AD2d 709 [2d Dept 1992].) In{**25 Misc 3d at 214} order for a statute to change the common law, the legislative intent behind the statute must clearly have the purpose of doing so. (See Dean v Metropolitan El. Ry. Co., 119 NY 540 [1890]; Bose v United Empl. Agencies, Inc., 200 Misc 176 [Mun Ct, Brooklyn 1951].) The Appellate Division, Fourth Department, has adopted this broad common-law definition and has expressly determined that even a "wife" is a licensee capable of being removed from the marital home under an RPAPL 713 (7) proceeding unless a summary eviction would be in derogation of her rights under the Domestic Relations Law. (Halaby v Halaby, 44 AD2d 495 [4th Dept 1974].)

Familial Relationship Exceptions

Premised upon a finding that a girlfriend meets the common-law definition of a licensee, it would be logical to conclude that section 713 (7) is the appropriate summary statutory mechanism to dispossess her. Confusedly, the aforementioned Tyler court and its progeny created a "familial relationship" exception to the common-law definition of licensee, which had broad ramifications in limiting the use of summary proceedings to dispossess persons outside of a landlord-tenant [*4]relationship.[FN1]This familial relationship exception initially stemmed from the Appellate Division, First Department, decision in Rosenstiel v Rosenstiel (20 AD2d 71 [1963]), which held that a husband cannot by means of summary proceedings evict his wife from the marital home, as long as the marriage relationship is unabridged by a court of competent jurisdiction or by a valid agreement. Rosenstiel relied upon the premise that the legislature intended to exempt wives from the common-law definition as it removed "Spouse Remaining on Premises after Separation or Divorce" from the original proposed bill and as a result of the affirmative enactment of mandated support statutes in the Domestic Relations Law (20 AD2d at 75). The Rosenstiel holding was expanded by New York City courts to cover domestic partners in reliance upon Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), which held that a paramour was a "family member" of his partner as envisioned by New York City's rent control laws, and as such, protected from eviction due to his occupancy{**25 Misc 3d at 215} succession rights. Thereafter, this expansive and somewhat subjective definition of family led to an ever evolving class constituting the "familial relationship" licensee exception, which presently includes a girlfriend who had a petitioner's child, grandchildren, adult children, stepchildren, and inlaws after the death or divorce of a spouse. See Lally v Fasano (23 Misc 3d 938 [Nassau Dist Ct 2009]) for a good historical synopsis.

Family Case-by-Case Review vs. Statutory Opt-Out Objective Test

Lower courts outside the City of New York somewhat acquiesced to the existence of a "familial relationship" licensee exception but balked at the idea of a "blanket assertion that all family members will be exempt from licensee status." (Lally v Fasano, 23 Misc 3d 938, 940 [2009].) In an attempt to limit the scope of the licensee exception, a "case-by-case" test was advanced whereby each court must examine whether the family members lived together under one roof, were financially and socially dependent and whether a legal duty of support existed. Utilizing this codependency test, it was held that a domestic partner could evict a former girlfriend who was the mother of his child pursuant to section 713 (7). (See Blake v Stradford, 188 Misc 2d 347 [Nassau Dist Ct 2001].) While the result of the Lally and Blake holdings appears correct, this court declines to adopt the "case-by-case" codependency test. A close reading of the Second Department's Rosenstiel precedent reveals a simpler more objective licensee exemption test. Rosenstiel relied upon the premise that the legislature intended to exempt wives from the common-law definition as a result of the affirmative enactment of mandated support and marital distribution statutes contained in the Domestic Relations Law. Similarly, the common thread running through the Court of Appeals Braschi decision is not the common-law definition of family, but rather the [*5]statutory protections flowing from New York's rent-control apartment succession laws. The Appellate Division, Fourth Department, in Halaby (44 AD2d at 499), citing to Tausik v Tausik (11 AD2d 144 [1st Dept 1960], affd 9 NY2d 664 [1961]), also made its section 713 (7) licensee determination premised upon a finding that prior to the initiation of the RPAPL 713 (7) proceeding, the husband's support obligations had already been determined by the Family Court. Thus, the husband was not circumventing his{**25 Misc 3d at 216} obligations by using the section 713 (7) summary proceeding. The Court disregarded any arguments that licensee status hinged upon the definition of "family." In all these instances, the common law was modified via express statutory amendment. It is submitted herein that section 713 (7) includes all common-law licensees except those who can claim an "opt-out" status by virtue of inclusion in a legislative vehicle which grants them greater rights than those of a licensee.[FN2] Mere "cohabitation without marriage does not give rise to property and financial rights which attend the marital relation." (Morone v Morone, 50 NY2d 481, 486 [1980].) It is therefore the burden of the respondent paramour to identify her statutory entitlement to opt out of the common-law licensee definition. (See generally Eckles v Sealy, NYLJ, Apr. 17, 2002, at 27, col 6.) In the instant proceeding, the respondent advances no argument citing to alternative statutory entitlement to greater dispossession protections other than those provided by section 713 (7). As such, she meets the common-law definition of licensee and is subject to a section 713 (7) summary eviction. The court is aware of the respondent's factual assertion via the argument of counsel that she granted the petitioner a one-half interest in her house, possibly in consideration of her cohabiting with the petitioner. Assuming such a defense was asserted in an answer to the petition, such an arrangement might establish a constructive trust or joint venture/partnership which could be an affirmative defense to a licensee proceeding. (See generally Padilla v Padilla, 164 Misc 2d 740 [Civ Ct, Bronx County 1995], citing Minors v Tyler, supra.) However, the respondent's failure to appear and testify leaves the court an insufficient record to consider such a defense. Accordingly, the court finds that the respondent is a section 713 (7) licensee and that she received the appropriate 10-day notice of termination of her license to occupy the premises located at 43 Louisa Court, Northport, New York. The petitioner may submit a judgment of possession and a warrant of eviction, enforcement of which shall be stayed until June 30, 2009.[*6]

Footnotes

Footnote 1: A familial relationship exception to the licensee definition would also bar the use of summary proceedings to remove adult children from their elderly parents' homes. This everyday situation in landlord-tenant court could now only be addressed via a Supreme Court action in ejectment which the Fourth Department Halaby Court described as an inadequate remedy. Footnote 2: This is consistent with this court's ruling in Curtis Jackson (50 Cent) v Shaniqua Tompkins (HULT No. 112-08, Apr. 3, 2008), wherein it was determined that the girlfriend respondent was a section 713 (7) licensee as support payments, inclusive of a housing allowance, were current. This statutory "opt-out" test also allows for parents and grandparents to dispossess adult children/family members as licensees via a summary proceeding.

Wednesday, September 11, 2013

Today I will be a volunteer lawyer for the day at Landlord/Tenant court in Hempstead. Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project (VLP). The Nassau County Bar Association partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community. Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters. I will be with The Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.

Tuesday, September 10, 2013

Consulting at yesterday's Sandy/Foreclosure clinic, I was faced with this issue - can one rebuild with insurance funds, SBA loans, etc. and make the housing affordable.See this article:NY WORLD - Left high and dry by insurers, homeowners reluctantly borrow Sandy rebuilding fundsSo assuming a family earning $100,000 a year, with a $200,000 regular mortgage, requiring a $250,000 loan SBA loan to rebuild in addition to flood insurance funds received - with Nassau County taxes, flood insurance costs, etc. calculated and assuming no other debt - that would put the family into a house with $450,000 debt and unaffordable housing.

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/